THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT LIRA

MISC. APPLICATION NO. 108 OF 2024
(Arising from Civil Suit No. 10 of 2024)

1. ENG. DR. MICHAEL ODONGO OKUNE

2. OJWANG OPOTA
3. WILLIE OMODO OMODO===============================APPLICANTS
-VERSUS-
1. OBIA DENIS ACILA
2. OKII BENJAMIN
3. DICKSON OGWANG OKUL
4. DR. OKELLO DAN
5. PROF. DR. RICHARD NAM
6. OPITO DAN ODWEE
7. OKWIR JARAMOGI DENNIS===========================RESPONDENTS

BEFORE: HON. MR. JUSTICE PHILLIP ODOKI

RULING

Introduction:

[1] The Applicants brought this application by Chamber Summons under Section 98 of the

Civil Procedure Act, Cap 282 and Order 41 rules 1 & 9 of the Civil Procedure Rules S.1. 71-

1. They are seeking for a temporary injunction to restrain the Respondents or their agents from,

participating in or carrying out the elections of the Paramount Chief of Lango (Rwot Nyaci),

swearing in, installing and coronating any person as Paramount Chief of Lango or carrying out

any other related activities organized by Longo Cultural Foundation or its Electoral

Commission or any of its agents pending the hearing and final determination of Civil Suit No.

10 of 2024.

1
Background:

[2] The background to this application is that the 1st and 2nd Respondent, who are Lango by

tribe and clan heads of their respective clans, instituted Civil Suit No. 10 of 2024 against the

Applicants, together with 3 others, challenging the election of the 1st Applicant as the

Paramount Chief of Lango. They contend that the election was marred with illegalities. In their

view, the election is null and void ab initio. The Applicants filed their written statement of

Defense (WSD) denying the claims in the plaint. They instead filed a counterclaim against the

Respondents wherein they allege that the 1st Applicant was elected the Paramount Chief of

Lango. They further allege that it is the Respondents who are participating in a fresh election

of the Paramount Chief of Lango without following the procedure. In the counterclaim, they

are seeking, inter alia, a permanent injunction to restrain the Respondents from organizing

parallel elections of the Paramount Chief of Lango and any other remedies this Court deems

fit.

[3] On the same date when the Applicants filed the counterclaim, they also filed the instant

application seeking the orders stated in paragraph 1 above. The Applicants also filed Misc.

Application No. 109 of 2024 seeking for an interim injunction pending determination of the

instant application. On the 11th October 2024 this Court granted the application for the interim

injunction restraining the Respondents or their agents from carrying out or continuing with the

process of the election organized by the Lango Cultural Foundation or its Electoral

Commission or any of its agents for the position of Won Nyaci of Lango, or declaring,

installing and coronating any candidate as winner of the said election until the determination

of Miscellaneous Application No. 108 of 2024.

2
The Applicants’ case:

[4] The gist of the Applicants’ case in this application, as set out in the Chamber Summons,

supported by the affidavit of the 3rd Applicant, is that while Civil Suit No. 10 of 2024 is pending

hearing and final determination, the Respondents planned to conduct or participate in a parallel

election of the Paramount Chief of Lango on the 11th October 2024. The Applicants contend

that if the parallel election for the Position of Paramount Chief, which is organized by the

Respondents, is not stopped, it will render Civil Suit No. 10 of 2024 nugatory, causing them

inconvenience and irreparable injury. The Applicants further contend that it is fair and just that

the status quo be maintained pending the hearing and final determination of Civil Suit No. 10

of 2024.

The Respondents’ case:

[5] The Respondents’ case on the other hand, as can be discerned from the affidavits in reply

sworn by the Respondents, is that this application has been overtaken by events since the

election which is intended to be stopped took place on the 11th November 2024, the 3rd

Respondent was already declared the winner, he took oath of allegiance and secrecy. According

to the Respondents, any order of temporary injunction will be in vein and without any practical

purpose. The Respondents further contend that the Applicants have not demonstrated that the

counterclaim has any chance of success and that they will suffer irreparable damage. According

to the Respondents, the balance of convenience is in their favor since the election that the

Respondents seek to be stopped was organized by the reigning Paramount Chief, Yosam Oddur

Ebii, who has spent a lot of time and money to organize the said election.

3
Legal representation and submissions:

[6] At the hearing, the Applicants were represented by a team of 8 lawyers. That is, Dr. Adams

Makmot Kibwanga, Mr. Patrick Okwir, Mr. Quirinus Oyugi Onono, Mr. Gabriel Obua, Mr.

Simon Peter Odoo, Mr. Ponsiano Okello, Dr. Rebecca Amolo and Dr. Rebecca Amolo. The

Respondents were represented by a team of 3 lawyers. That is Mr. Emanuel Egaru Omiat, Mr.

Hamis Obua and Mr. Inocent Okuny.

[7] The Court gave directives to counsel to file written submissions. Only counsel for the

Applicants complied with the directive of this Court. I have given the submission the due

consideration in the determination of this application.

Analysis and determination of the court:

[8] It is a settled position of the law that this Court has the requisite power to grant an order of

a temporary injunction. This power is provided for is several legislations and has over the years

been severally interpreted by the courts. Section 38(1) of the Judicature Act, Cap 16 provides

that the High Court shall have power to grant an injunction to restrain any person from doing

any act as may be specified by the High Court. Similarly, under section 64 (e) of the Civil

Procedure Act, Cap 282, in order to prevent the ends of justice from being defeated, the court

may make interlocutory orders as may appear to the court to be just and convenient. Order 41

rules 1 and 2 of the Civil Procedure Rules S.1. 71-1 provide for cases in which a temporary

injunction may be granted. That is, where any property in dispute in a suit is in danger of being

wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a

decree; or where the defendant threatens or intends to remove or dispose of his or her property

with a view to defraud his or her creditors; or in any suit for restraining the defendant from

committing a breach of contract or other injury of any kind, whether compensation is claimed

in the suit or not.

4
[9] In the celebrated case of Kiyimba Kaggwa versus Hajji Katende Abdu Nasser (1985) HCB

43 Odoki J, as he then was, held that:

“The granting of a temporary injunction is an exercise of Judicial Discretion and the

purpose of the granting it is to preserve matters in status quo until the question to be

investigated in the suit can finally be disposed of. The conditions for the grant of an

injunction are first that; the applicant must show Prima facie case with a probability

of success. Secondly, such injunction will not normally be granted unless the appellant

might otherwise suffer irreparable injury which would not adequately be compensated

by an award of damages. Thirdly if the court is in doubt, it will decline an application

on the balance of convenience”

[10] In the instant case, the Respondents contend that there is no status quo anymore to

protected. In their view, this application has been overtaken by events since the election which

is intended to be stopped took place on the 11th November 2024, the 3rd Respondent was

declared the winner, he took the oath of allegiance and secrecy. The sum total of the contention

of the Respondents is that this application is now moot and any order of a temporary injunction

would be in vein without any practical effect.

[11] The doctrinal basis of mootness is that courts do not decide cases for academic purposes.

Court orders must have a practical effect and be capable of enforcement. In Maganda versus

National Resistance Movement HCMA No. 154 of 2010, Musota J., as he then was, held that:

“Courts of law do not decide cases where no live disputes between the parties are in

existence. Courts do not decide cases or issue orders for academic purposes only. Court

orders must have practical effects. They cannot issue orders where the issue in dispute

have been removed or merely no longer exist.”

5
[12] Similarly, in the Canadian case of Joseph Borowski Vs Attorney General of Canada

(1989) 1 S.C.R the court held that:

“The doctrine of mootness is part of a general policy that a court may decline to decide

a case which raises merely a hypothetical or abstract question. An appeal is moot when

a decision will not have the effect of resolving some controversy affecting or potentially

affecting the rights of the parties. Such a live controversy must be present not only

when the action or proceeding is commenced but also when the court is called upon to

reach a decision. Accordingly, if subsequent to the initiation of the action or

proceeding, events occur which affect the relationship of the parties so that no present

live controversy exists which affects the rights of the parties, the case is said to be

moot.”

[13] There are three reasons for the doctrine of mootness. The first is that a court’s competence to

resolve legal disputes is rooted in the adversarial system and in a full adversarial context, both

parties must have a full stake in the outcome of a suit. The second is based on the concern for

judicial economy which requires that the court examines the circumstances of a case to determine

if it is worthwhile to allocate scarce judicial resources to resolve its issue. The third is the need

for Courts to be sensitive to the effectiveness or efficacy of judicial intervention. It follows

therefore that the test as to whether a suit is moot is whether or not there exists a live controversy

between parties.

[14] As I have already stated in paragraph 1 above, this application does not only seek to restrain

the Respondents or their agents from, participating in or carrying out the elections of the

Paramount Chief of Lango (Rwot Nyaci), but it also seeks to restrain the Respondents from

participating or carrying out swearing in, installing, coronating any person as Paramount Chief

6
of Lango or carrying out any other related activities organized by Longo Cultural Foundation

or its Electoral Commission or any of its agents pending the hearing and final determination of

Civil Suit No. 10 of 2024.

[15] In my view, the phase ‘any other related activities’ used in the application has a wide

interpretation. It includes all acts analogous to those expressly mentioned. Acts such as being

handing over office or being handed over office, informing the Minister responsible for culture

that the 3rd Applicant is the newly elected Paramount Chief for the purpose of causing his name

to published in the gazette and carrying out any other act as the newly elected Paramount Chief

of Lango are some of the acts covered under the phrase ‘any other related activities’.

[16] Therefore, although the Respondents adduced evidence that the election took place, that

the 3rd Respondent was declared the winner and that he took oath of allegiance and secrecy, in

my view, those acts do not render this application moot. From the reading of the affidavits of

all the Respondents, it appears clear to me that His Royal Highness, Yasam Odur Ebii, is still

the reigning Paramount Chief of Lango. He is still the corporation sole with perpetual

succession and with capacity to sue and be sued and to hold assets or properties in trust for

itself and the people Lango in accordance with Article 246(3) (a) of the Constitution of the

Republic of Uganda, 1995 and Section 7(1) of the Institution of Traditional or Cultural

Leaders Act, Cap 242. In addition, no evidence was adduced by the Respondents to show that

the reigning Paramount Chief has already handed over office to the 3rd Respondent or informed

the Minister responsible for culture that the 3rd Respondent is the Paramount Chief of Lango

or that the name of the 3rd Respondent has already been published in the gazette as the new

Paramount Chief of Lango in compliance with Section 6 of the Institution of Traditional or

Cultural Leaders Act, Cap 242. My finding, therefore, is that this application has not been

7
overtaken by events or that it is moot. The dispute between the parties is still live and there is

the status quo to be maintained.

[17] I shall now proceed to determine whether the Applicant have met the conditions for the grant

of a temporary injunction. The first condition is that there is a prima facie case with a probability

of success. In American Cyanamid Co. versus Ethicon Ltd, [1975] 1 All ER 504 Lord Diplock

stated that:

“The use of such expressions as 'a probability', 'a prima facie case', or 'a strong prima

facie case' in the context of the exercise of a discretionary power to grant an

interlocutory injunction leads to confusion as to the object sought to be achieved by

this form of temporary relief. The court no doubt must be satisfied that the claim is not

frivolous or vexatious; in other words, that there is a serious question to be tried.

It is no part of the court's function at this stage of the litigation to try to resolve conflicts

of evidence on affidavit as to facts on which the claims of either party may ultimately

depend nor to decide difficult questions of law which call for detailed argument and

mature considerations. These are matters to be dealt with at the trial.”

[15] In the instant case, the Applicants allege that the 1st Applicant was elected as the

Paramount Chief of Lango and yet the Respondents, without following the proper procedure

organized a parallel election of the Paramount Chief of Lango. In my view, the Applicants’

case raises a serious question to be tried as to whether the election organized by the

Respondents was in compliance with the law. It cannot be said that the counterclaim such is

frivolous or vexatious. I therefore find that the Applicants have satisfied the 1st condition for

the grant of a temporary injunction.

8
[16] The 2nd condition is that the Applicant might otherwise suffer irreparable injury which

would not be adequately compensated by an award of damages. In the American Cyanamid

(supra), Lord Diplock stated that:

“As to that, the governing principle is that the court should first consider whether if the

plaintiff were to succeed at the trial in establishing his right to a permanent injunction

he would be adequately compensated by an award of damages for the loss he would

have sustained as a result of the defendant's continuing to do what was sought to be

enjoined between the time of the application and the time of the trial. If damages in the

measure recoverable at common law would be adequate remedy and the defendant

would be in a financial position to pay them, no interlocutory injunction should

normally be granted, however strong the plaintiff's claim appeared to be at that stage.

If, on the other hand, damages would not provide an adequate remedy for the plaintiff

in the event of his succeeding at the trial, the court should then consider whether, on

the contrary hypothesis that the defendant were to succeed at the trial in establishing

his right to do that which was sought to be enjoined, he would be adequately

compensated under the plaintiff's undertaking as to damages for the loss he would have

sustained by being prevented from doing so between the time of the application and the

time of the trial. If damages in the measure recoverable under such an undertaking

would be an adequate remedy and the plaintiff would be in a financial position to pay

them, there would be no reason this ground to refuse an interlocutory injunction.’

Underlined for emphasis.

[17] Applying the above principle to the facts in the instant case, the Applicants contend that

if the parallel election for the Position of Paramount Chief, which is organized by the

Respondents, is not stopped, it will render Civil Suit No. 10 of 2024 nugatory, causing them

9
inconvenience and irreparable injury. As I have already stated above, the election organized by

the Respondents is not an end in itself. For that election to have any meaning, the office of the

Paramount Chief has to be handed over to the winner of that election and the name of the

winner has to be put in the gazette as the new Paramount Chief Lango. If that were to happen,

the counterclaim would be rendered nugatory and 1st Applicant who is alleged to have been

already elected as the Paramount Chief, would suffer irreparable injury by losing the position.

In my view, such a loss cannot be adequately compensated by award of damages. I therefore

find that the Applicants have also satisfied the 2nd condition for the grant of a temporary

injunction.

[14] The 3rd condition is that, if the court is in doubt then it will determine the application on

the balance of convenience. In the American Cyanamid (supra), Lord Diplock stated that:

“It is where there is doubt as to the adequacy of the respective remedies in damages

available to either party or to both, that the question of balance of convenience

arises. It would be unwise to attempt even to list all the various matters which may need

to be taken into consideration in deciding where the balance lies, let alone to suggest

the relative weight to be attached to them. These will vary from case to case.

Where other factors appear to be evenly balanced it is a counsel of prudence to take

such measures as are calculated to preserve the status quo. If the defendant is enjoined

temporarily from doing something that he has not done before, the only effect of the

interlocutory injunction in the event of his succeeding at the trial is to postpone the date

at which he is able to embark upon a course of action which he has not previously found

it necessary to undertake; whereas to interrupt him in the conduct of an established

enterprise would cause much greater inconvenience to him since he would have to start

again to establish it in the event of his succeeding at the trial…

10
 The extent to which the disadvantages to each party would be incapable of being

compensated in damages in the event of his succeeding at the trial is always a

significant factor in assessing where the balance of convenience lies, and if the extent

of the uncompensatable disadvantage to each party would not differ widely, it may not

be improper to take into account in tipping the balance the relative strength of each

party's case as revealed by the affidavit evidence adduced on the hearing of the

application.” Underlined for emphasis.

[15] In the instant case, the actions which the Applicants seek to restrain the Respondents from

doing can wait the determination of this Court as to whether the election organized by the

Respondents was in compliance with the law. If at the end of the trial the Court finds that the

election was in compliance with the law, they can continue to pursue the course which they

were pursuing. Any costs occasioned by any delay can be compensated in damages. On the

other hand, if the Respondents were not restrained, the counterclaim would be rendered

nugatory and the 1st Applicant would have lost his position as the alleged Paramount Chief of

Lango without the possibility of any adequate compensation. I therefore find that the balance

of convenience in this case favors the grant of a temporary injunction.

[19] In the end, I find that this application has merit. It is accordingly granted. The Respondents

and their agents are hereby restrained from participating in any activity leading to hand over

office of the Paramount Chief of Lango to the 3rd Respondents, informing the Minister

responsible for culture that the 3rd Applicant is the newly elected Paramount Chief for the

purpose of causing his name to published in the gazette, carrying out any other acts to portray

the 3rd Respondent as the newly elected Paramount Chief of Lango and from conducting or

participating in any further acts or activities with the intention to install or portray the 3rd

Respondent as the Paramount Chief of Lango pending the hearing and final determination of

11
Civil Suit No. Civil Suit No. 10 of 2024. The costs of this application shall abide the outcome

of Civil Suit No. Civil Suit No. 10 of 2024.

I so order.

Dated and delivered by email this 28th day of October 2024

Phillip Odoki

JUDGE

12